In re Interest of Trey H.
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A county court, sitting as juvenile court, adjudicated Trey H. and committed him to the custody of the Office of Juvenile Services (OJS) with placement in his parental home. After Trey violated his treatment plan, the court changed his placement to a youth rehabilitation and treatment center (YRTC) operated by OJS. The court then conducted a review hearing in which the Department of Health and Human Services argued that the juvenile court did not have statutory authority to order the review hearings. After examining the juvenile code, the Supreme Court concluded that a juvenile court lacked subject matter jurisdiction to conduct review hearings for such juveniles. Because the order was void, the Court vacated the order and dismissed the Department's appeal.
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Nebraska Advance Sheets
760
In
281 nebraska reports
re I nterest of Trey H., a child under
State
18
years of age.
of Nebraska, appellee, v. Trey H., appellee,
and Department of H ealth and Human
Services,
appellant.
___ N.W.2d ___
Filed June 17, 2011.
No. S-10-953.
1. Administrative Law: Appeal and Error. An appellate court independently
reviews questions of law decided by a lower court.
2. Jurisdiction: Judgments. A jurisdictional issue that does not involve a factual
dispute presents a question of law.
3. Statutes. The meaning and interpretation of a statute present a question of law.
4. Juvenile Courts: Child Custody: Appeal and Error. When a juvenile court has
given the department of Health and Human Services custody of a juvenile, Neb.
Rev. Stat. § 43-285(5) (Reissue 2008) authorizes the department to seek review
of a juvenile court order denying it requested relief.
5. Juvenile Courts: Jurisdiction: Statutes. Juvenile courts are courts of limited
and special jurisdiction and have authority to act only if a statute confers such
authority on them.
6. Juvenile Courts: Jurisdiction: Child Custody. A juvenile court’s jurisdiction
over an adjudicated juvenile continues even when it commits a juvenile to the
Office of Juvenile Services. So for at least some purposes, the court has jurisdiction over the juvenile from the time it adjudicates the juvenile until the Office of
Juvenile Services discharges the juvenile.
7. Juvenile Courts: Final Orders. When a court adjudicates a juvenile under both
subsection (2) and subsection (3)(b) of Neb. Rev. Stat. § 43-247 (Reissue 2008)
and commits the juvenile to the Office of Juvenile Services with a placement at
a youth rehabilitation and treatment center, it has determined that the subsection
(2) adjudication will control the juvenile’s disposition.
8. ____: ____. When a juvenile court decides to place a juvenile adjudicated under
Neb. Rev. Stat. § 43-247(2) and (3)(b) (Reissue 2008) at a youth rehabilitation
and treatment center, the placement decision controls and Neb. Rev. Stat. § 43-278
(Reissue 2008) does not authorize the court to conduct review hearings.
9. Jurisdiction: Words and Phrases. Subject matter jurisdiction is a court’s power
to hear and determine a case in the general class or category to which the proceedings in question belong and to deal with the general subject involved in the
action or proceeding before the court and the particular question which it assumes
to determine.
10. Jurisdiction. The question of a court’s subject matter jurisdiction does not turn
solely on the court’s authority to hear a certain class of cases. It also involves
determining whether a court has authority to address a particular question that it
assumes to decide or to grant the particular relief requested.
11. Juvenile Courts: Jurisdiction. A juvenile court lacks jurisdiction to conduct or
order review hearings to monitor a juvenile’s progress while the juvenile is placed
at a youth rehabilitation and treatment center.
Nebraska Advance Sheets
in re interest of trey h.
Cite as 281 Neb. 760
761
12. Judgments: Jurisdiction. A court action taken without subject matter jurisdiction is void.
13. Judgments: Final Orders: Jurisdiction: Appeal and Error. A void order is a
nullity which cannot constitute a judgment or final order that confers appellate
jurisdiction on this court.
14. Judgments: Jurisdiction: Appeal and Error. An appellate court has the power
to determine whether it lacks jurisdiction over an appeal because the lower court
lacked jurisdiction to enter the order; to vacate a void order; and, if necessary, to
remand the cause with appropriate directions.
Appeal from the County Court for Cheyenne County: R andin
Roland, Judge. Vacated and dismissed.
Eric M. Stott, Special Assistant Attorney General, for
a
ppellant.
Paul B. Schaub, Cheyenne County Attorney, for appellee
State of Nebraska.
Heavican, C.J., Connolly, Gerrard, Stephan, McCormack,
and Miller-Lerman, JJ.
Connolly, J.
In yet another ongoing turf battle between the juvenile
courts and the Department of Health and Human Services
(Department), a juvenile court determined that it had authority to conduct review hearings for a juvenile placed at a youth
rehabilitation and treatment center (YRTC). The Department
argues that the juvenile court did not have statutory authority to order the review hearings. After examining the juvenile
code’s statutory maze, we conclude that a juvenile court lacks
subject matter jurisdiction to conduct review hearings for such
juveniles. Because the order is void, we vacate the order and
dismiss the Department’s appeal.
BACKGROUND
In March 2010, the county court for Cheyenne County, sitting as juvenile court, adjudicated Trey H. under Neb. Rev.
Stat. § 43-247(2) and (3)(b) (Reissue 2008). The original disposition committed him to the custody of the Office of Juvenile
Services (OJS) with placement in his parental home. But in
June, after Trey violated his treatment plan, the court changed
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his placement to a YRTC. OJS operates the YRTC. OJS is a
section of the Department’s Division of Children and Family
Services. A court’s commitment of a juvenile to OJS is a commitment to the Department’s care and custody “for the purpose
of obtaining health care and treatment services.”
In September 2010, the court conducted a review hearing
with Trey appearing telephonically. The Department argued
that the court lacked jurisdiction to conduct the hearing. The
court agreed that under In re Interest of Jorge O., it could not
order Trey’s release or a different disposition. But it concluded
that it could monitor Trey’s progress and determine what his
attorney and guardian ad litem knew about Trey’s progress at
the YRTC. It concluded by scheduling another review hearing
for a date 3 months later.
ASSIGNMENT OF ERROR
The Department assigns that the juvenile court erred in
ordering a review hearing for a juvenile residing at the YRTC.
STANDARD OF REVIEW
[1-3] We independently review questions of law decided by
a lower court. A jurisdictional issue that does not involve a
factual dispute presents a question of law. The meaning and
interpretation of a statute present a question of law.
ANALYSIS
[4] When a juvenile court has given the Department custody of a juvenile, Neb. Rev. Stat. § 43-285(5) (Reissue 2008)
authorizes the Department to seek review of a juvenile court
See Neb. Rev. Stat. § 43-404 (Reissue 2008).
See Neb. Rev. Stat. §§ 81-3113 and 81-3116(2) (Reissue 2008).
Neb. Rev. Stat. § 43-408(1) (Reissue 2008).
In re Interest of Jorge O., 280 Neb. 411, 786 N.W.2d 343 (2010).
See Jameson v. Liquid Controls Corp., 260 Neb. 489, 618 N.W.2d 637
(2000).
Middle Niobrara NRD v. Department of Nat. Resources, ante p. 634, ___
N.W.2d ___ (2011).
Id.
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Cite as 281 Neb. 760
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order denying it requested relief. The Department argues that
§ 43-408(2) precludes review hearings for these juveniles.
The county attorney views it differently. It contends that (1)
juvenile courts have jurisdiction to hold review hearings every
6 months for juveniles adjudicated under § 43-247(3)(b) and
(2) the court can conduct review hearings for juveniles committed to a YRTC even if the juvenile is not adjudicated under
subsection (3).
[5] Juvenile courts are courts of limited and special jurisdiction and have authority to act only if a statute confers such
authority on them. The Nebraska Constitution explicitly permits the Legislature to define a juvenile court’s jurisdiction and
its powers.10 The Legislature, however, has not been consistent.
It has sometimes sent mixed messages by withholding the
statutory authority to act in areas for which it has conferred
jurisdiction on juvenile courts.
[6] Section 43-247 gives a juvenile court continuing jurisdiction over an adjudicated juvenile:
Notwithstanding any disposition entered by the juvenile
court under the Nebraska Juvenile Code, the juvenile
court’s jurisdiction over any individual adjudged to be
within the provisions of this section shall continue until
the individual reaches the age of majority or the court
otherwise discharges the individual from its jurisdiction.
A juvenile court’s jurisdiction over an adjudicated juvenile
continues even when it commits a juvenile to OJS. Section
43-408(2) provides that “[t]he court shall continue to maintain
jurisdiction over any juvenile committed to [OJS] until such
time that the juvenile is discharged from [OJS].” So for at least
some purposes, the court has jurisdiction over the juvenile
from the time it adjudicates the juvenile until OJS discharges
the juvenile.
But despite this grant of jurisdiction, the Legislature has limited the court’s authority to review the progress of a juvenile
10
See In re Interest of C.G. and G.G.T., 221 Neb. 409, 377 N.W.2d 529
(1985).
See In re Interest of Jorge O., supra note 4.
See Neb. Const. art. V, § 27.
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committed to OJS when the court approves placement of the
juvenile at a YRTC. On further examining § 43-408(2), the
next sentence states, “The court shall conduct review hearings
every six months, or at the request of the juvenile, for any
juvenile committed to [OJS] who is placed outside his or her
home, except for a juvenile residing at a [YRTC].” (Emphasis
supplied.) Section 43-408(2) also gives a court authority to
determine that an out-of-home placement is not in the juvenile’s best interests. But the court is handcuffed if it has placed
the juvenile at a YRTC. In that circumstance, it cannot conduct
review hearings to determine if it is in the best interests of the
juvenile to be placed at a YRTC.
Recently, we addressed a juvenile court’s lack of authority
to conduct review hearings in In re Interest of Jorge O.11 That
case involved two consolidated appeals. In one case, the court
sustained OJS’ request to transfer a juvenile, who was already
committed to OJS’ custody, to a YRTC. In the other, the court
committed the juvenile to OJS for placement at a YRTC in the
original disposition order. In both cases, the court ordered OJS
not to discharge the juvenile without the court’s approval and
to schedule a review hearing after the juvenile’s discharge from
the YRTC.
We held that only OJS has the statutory authority to determine whether a juvenile will be discharged from a YRTC.
We further held that a juvenile court lacks authority to conduct review hearings for juveniles after OJS has discharged
them from a YRTC. We stated that § 43-408(2) precludes
a juvenile court from conducting review hearings while the
juvenile is placed at a YRTC. We also stated that Neb. Rev.
Stat. § 43-412(2) (Reissue 2008) precludes the court from conducting review hearings after the juvenile’s discharge from a
YRTC. We concluded that a juvenile’s discharge from a YRTC
is a “‘complete release’” that precludes a juvenile court from
exercising jurisdiction over a juvenile after the discharge.12
Because the court had exceeded its powers, we reversed and
vacated those portions of the court’s orders that required OJS
11
12
In re Interest of Jorge O., supra note 4.
Id. at 417, 786 N.W.2d at 347.
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to obtain the court’s approval for discharge and to schedule a
review hearing.
But we did not view the court’s order as an action taken
without subject matter jurisdiction. The juvenile code authorizes a court to approve a transfer to a YRTC for juveniles
already placed in OJS’ custody13 or to commit a juvenile age
12 or older to a YRTC in a disposition order.14 In other cases,
we have similarly vacated or reversed a juvenile court’s order
if the order included requirements that exceeded the court’s
authority or if the court failed to comply with prerequisites for
taking the action.15 We have not treated these orders as nullities
that fail to confer jurisdiction on an appellate court if the juvenile statutes authorized the court to take an action. But here,
the statutes do not authorize the action that the juvenile court
purported to take—conducting or ordering a review hearing for
juveniles committed to OJS and placed at a YRTC.
We recognize that the court adjudicated Trey under subsections (2) (felonious conduct if committed by an adult)
and (3)(b) (uncontrolled conduct) of § 43-247. But we disagree with the county attorney that Neb. Rev. Stat. § 43-278
(Reissue 2008) is controlling here. It is correct that § 43-278
requires a juvenile court to conduct review hearings at least
every 6 months for juveniles adjudicated under § 43-247(3)
(neglected or uncontrolled). We also note that Neb. Rev. Stat.
§ 43-251.01(2) (Reissue 2008) prohibits a court from committing a juvenile adjudicated under subsection (3) (neglected or
uncontrolled) to OJS or placing them in a YRTC.
[7] But these statutes do not prohibit a court from placing
a juvenile at a YRTC if the court also adjudicated the juvenile
under § 43-247(2) (felonious conduct). As noted, the court
also adjudicated Trey under subsection (2), and § 43-286(1)(b)
13
14
15
See § 43-408(4).
See Neb. Rev. Stat. § 43-286 (Reissue 2008).
See, In re Interest of Jorge O., supra note 4; In re Interest of Dakota M.,
279 Neb. 802, 781 N.W.2d 612 (2010); In re Interest of Dustin S., 276
Neb. 635, 756 N.W.2d 277 (2008); In re Interest of Markice M., 275 Neb.
908, 750 N.W.2d 345 (2008). See, also, In re Interest of Jeremy T., 257
Neb. 736, 600 N.W.2d 747 (1999).
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explicitly permitted the court to place him at a YRTC in that
circumstance. So when a court adjudicates a juvenile under
both subsection (2) and subsection (3)(b) of § 43-247 and commits the juvenile to OJS with a placement at a YRTC, it has
determined that the subsection (2) adjudication will control the
juvenile’s disposition.
[8] It follows that when a court determines that a juvenile’s
adjudication under § 43-247(2) controls the juvenile’s disposition, the disposition must necessarily control which review
hearing statute applies. Obviously, § 43-278’s requirement
for 6-month review hearings for juveniles adjudicated under
§ 43-247(3) and § 43-408(2)’s prohibition of review hearings
for juveniles placed at a YRTC cannot both be enforced. We
conclude that when a juvenile court decides to place a juvenile
adjudicated under § 43-247(2) (felonious conduct) and (3)(b)
(uncontrolled conduct) at a YRTC, the placement decision
controls and § 43-278 does not authorize the court to conduct
review hearings. This lack of statutory authorization raises the
issue of the court’s subject matter jurisdiction.
[9-11] Subject matter jurisdiction is a court’s power to hear
and determine a case in the general class or category to which
the proceedings in question belong and to deal with the general
subject involved in the action or proceeding before the court
and the particular question which it assumes to determine.16
But the question of a court’s subject matter jurisdiction does
not turn solely on the court’s authority to hear a certain class of
cases. It also involves determining whether a court has authority to address a particular question that it assumes to decide
or to grant the particular relief requested.17 We conclude that
a juvenile court lacks jurisdiction to conduct or order review
hearings to monitor a juvenile’s progress while the juvenile is
placed at a YRTC.
[12-14] Here, the juvenile court lacked subject matter jurisdiction to conduct or order review hearings for Trey. A court
16
17
See In re Estate of Hockemeier, 280 Neb. 420, 786 N.W.2d 680 (2010).
See, State ex rel. Lamm v. Nebraska Bd. of Pardons, 260 Neb. 1000, 620
N.W.2d 763 (2001); Ryan v. Ryan, 257 Neb. 682, 600 N.W.2d 739 (1999);
In re Interest of J.T.B. and H.J.T., 245 Neb. 624, 514 N.W.2d 635 (1994).
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Cite as 281 Neb. 760
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action taken without subject matter jurisdiction is void.18
A void order is a nullity which cannot constitute a judgment or final order that confers appellate jurisdiction on this
court.19 But an appellate court has the power to determine
whether it lacks jurisdiction over an appeal because the lower
court lacked jurisdiction to enter the order; to vacate a void
order; and, if necessary, to remand the cause with appropriate directions.20
Because the juvenile court’s order was void, the Department
has not appealed from a final order or judgment. We therefore
vacate the juvenile court’s order and dismiss the appeal for lack
of jurisdiction.
Vacated and dismissed.
Wright, J., not participating.
18
See, Kovar v. Habrock, 261 Neb. 337, 622 N.W.2d 688 (2001); State v.
Bracey, 261 Neb. 14, 621 N.W.2d 106 (2001).
19
See, Macke v. Pierce, 263 Neb. 868, 643 N.W.2d 673 (2002); Bracey,
supra note 18; State v. Rieger, 257 Neb. 826, 600 N.W.2d 831 (1999).
20
See, Bracey, supra note 18; Rieger, supra note 19.
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